a) Notice of appeal not filed 

It is established case law that, if no written notice of appeal has been filed within the time limit but only the appeal fee has been paid in time, the mere payment does not constitute a valid means of lodging an appeal (T 551/15, T 2609/18). For a notice of appeal to be valid it must at least contain an explicit declaration of the wish to contest a particular decision by means of an appeal (T 371/92, OJ 1995, 324; T 767/18). It clearly follows from the wording of Art. 108 EPC that filing notice of appeal and payment of the appeal fee are two distinct requirements, each of which has to be fulfilled separately (see T 778/00, OJ 2001, 554; T 551/15).

The legislative amendment under the EPC 2000 whereby R. 99(1) EPC lists the items making up the obligatory content of the notice of appeal removed any doubt there might have been as to the fact that the mere payment of the appeal fee cannot replace the notice of appeal (T 1943/09, see also T 861/12).

Payment of the appeal fee may at the most imply that the appellant intends to file an appeal because, once an appeal fee is paid, it remains free to decide whether or not it wishes to lodge an appeal (T 371/92, T 778/00, T 767/18). The party is still left the choice of whether, or at what point in time, to file notice of appeal as the necessary second act for an appeal to come into existence (T 551/15).

It was established very early on in the boards' case law that paying an appeal fee is not enough on its own for an appeal to be validly filed (J 19/90). The board stated that this applied even if the object of the payment was indicated as being a "fee for appeal" relating to an identified patent application and the form for payment of fees and costs was used. This was confirmed in T 371/92 (OJ 1995, 324), T 445/98, T 514/05 (OJ 2006, 526) and T 778/00 (OJ 2001, 554), where the board also added that the failure to indicate the provisions of R. 65 EPC 1973 in the annex to the communication dealing with the possibility of appeal did not make this incomplete or misleading. This applies equally to inter partes proceedings (T 1926/09); it is in the public interest in both ex parte and inter partes proceedings to be informed with certainty about the applicant's intention of challenging a first-instance decision. See also T 1946/15. T 275/86 is an exception.

In T 595/11 the board held that fee payment is not an issue of admissibility of the appeal, but rather a precondition for the very existence of the appeal, i.e. its deemed filing. If the appeal fee is not paid, the appeal need not be examined at all for admissibility and even less on its merits.